The patent assignment says the assignor — the Inventor — will receive a share of any "recovery of damages" from litigation of the heart-stent patent that he assigned.
The assignee — let's call it Scimed — sues an infringer — which we'll call Cordis. Cordis in turn brings an action against Scimed, accusing it of Even Worse Infringement.
The parties settle. The accord calls for Scimed to pay Cordis $1.75 billion. All concur that the net to Cordis takes account of damages that Cordis owes Scimed. It offsets those damages.
Does Inventor have a good claim against Scimed for a share of the "recovery"?
Perhaps, the Third Circuit held today. The panel ruled, by a 2-1 vote, that the assignment agreement had an ambiguity (as to what counts as a "recovery") and that Inventor just might have a point that Scimed circumvented his right to a share of the (on-its-face-negative) "recovery" by using a setoff to obscure the damages that Scimed in truth actually got. Jang v. Boston Scientific Scimed, Inc., No. 12-3434 (3d Cir. Sept. 5, 2013) (applying Massachusetts law).